Com. v. Williams, A. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTOINE SHAWN WILLIAMS, : No. 109 MDA 2017
:
Appellant :
Appeal from the Order Entered October 26, 2015,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0004735-2009
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 31, 2017
Antoine Shawn Williams appeals, pro se, from the order entered
October 26, 2015, dismissing his PCRA1 petition. We affirm.
The PCRA court has summarized the history of this matter as follows:
In connection with the armed robbery of a local
barber shop that occurred on November 21, 2008, in
the city of Reading, Berks County, Pennsylvania,
during which the owner, Scott Bitler, was killed,
Antoine Shawn Williams (“Appellant”) was charged
with Criminal Homicide[Footnote 1], First Degree
Murder[Footnote 2], Second Degree
Murder[Footnote 3], Third Degree
Murder[Footnote 4], Aggravated Assault[Footnote 5],
Robbery[Footnote 6], Persons not to Possess, Use,
Manufacture, Control, Sell or Transfer Firearms
(“Persons not to Possess”)[Footnote 7], Possessing
the Instruments of Crime[Footnote 8], and
Conspiracy to Commit Robbery[Footnote 9]. The
Persons not to Possess charge was severed from the
1
42 Pa.C.S.A. §§ 9541-9546.
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other charges and the general “Homicide” charge
was withdrawn. Following a weeklong trial, the
Appellant was found guilty by a jury on January 14,
2011 of all the remaining charges: First, Second,
and Third Degree Murder, Aggravated Assault,
Robbery, Possessing the Instrument of a Crime, and
Conspiracy to Commit Robbery.
[Footnote 1] 18 Pa.C.S.A. §2501(a).
[Footnote 2] 18 Pa.C.S.A. §2502(a).
[Footnote 3] 18 Pa.C.S.A. §2502(b).
[Footnote 4] 18 Pa.C.S.A. §2502(c).
[Footnote 5] 18 Pa.C.S.A. §2702(a)(1).
[Footnote 6] 18 Pa.C.S.A. §3701(a)(1)(A).
[Footnote 7] 18 Pa.C.S.A. §6105(a)(1).
[Footnote 8] 18 Pa.C.S.A. §907(a).
[Footnote 9] 18 Pa.C.S.A. §903(a)(1).
This Court sentenced Appellant on March 8,
2011. For the First Degree Murder conviction, which
merged with Second and Third Degree Murder for
purposes of sentencing, the Court imposed a
mandatory life sentence. Appellant also received a
consecutive term of ten to twenty years of
incarceration for the Robbery conviction, and
two-and-a-half to five years on the count of
Possessing the Instrument of a Crime, which is also
consecutive to the life sentence but concurrent with
the Robbery sentence, for an aggregate total
sentence of life plus ten to twenty years of
incarceration. Counsel for the Appellant filed timely
post-sentence motions on March 18, 2011, which
this Court denied on March 22, 2011. Notice of
Appeal to the Superior Court was filed on April 20,
2011. The Superior Court affirmed Appellant’s
judgment of sentence on August 29, 2012.
Appellant filed a Petition for Allowance of Appeal to
the Pennsylvania Supreme Court, which was denied
on February 13, 2013. [Commonwealth v.
Williams, No. 704 MDA 2011, unpublished
memorandum (Pa.Super. filed Aug. 29, 2012),
appeal denied, 760 MAL 2012 (Pa. Feb. 13, 2013)
(per curiam).]
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On August 29, 2013, Petitioner, pro se, filed a
timely Petition for Collateral Relief under the Post-
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”). This Court appointed PCRA Counsel
Osmer Deming, Esquire, to assist Petitioner with the
disposition of his PCRA claims. See
Commonwealth v. Smith, 818 A.2d 494 (Pa.
2003); Commonwealth v. Ferguson, 722 A.2d 177(Pa.Super. 1998). Attorney Deming reviewed the
entire official file, determined that there were no
issues of merit, and, on July 8, 2014, filed a No-Merit
Letter and Motion to Withdraw as Counsel pursuant
to Commonwealth v. Finley, 550 A.2d 213(Pa.Super. 1988) [(en banc)], and Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988). This Court
conducted an independent review of the entire
record and also concluded that Appellant failed to
raise any cognizable grounds for PCRA relief.
Accordingly, on September 22, 2015, we issued an
Order and Notice of Intent to Dismiss the PCRA
Petition. In our Notice of Intent to Dismiss, we fully
reviewed Appellant’s PCRA claims, both of which
concerned ineffective assistance of counsel. The
Berks County Clerk of Courts’ Docket indicates that
Appellant filed a timely response to our Dismissal
Order on October 1, 2015. Due to a docketing error,
however, this Court did not originally receive a copy
of Appellant’s response. Accordingly, we granted
Attorney Deming’s Motion to Withdraw and dismissed
Appellant’s PCRA Petition on October 26, 2015,
without consideration of Appellant’s response. We
have since received and reviewed the response.
On May 24, 2016, Appellant filed a Notice of
Appeal to the Superior Court of Pennsylvania, in
which Appellant requested leave to appeal nunc pro
tunc and sought court permission to file an amended
PCRA petition. On June 8, 2016, we filed a
Memorandum Opinion pursuant to Pa.R.A.P. 1925(a)
requesting that the Superior Court remand the case
so that we could review Appellant’s October 1, 2015
response. On September 30, 2016, the Superior
Court entered an Order quashing Appellant’s appeal
as untimely without prejudice for the trial court to
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address Appellant’s Petition for Leave to Appeal
Nunc Pro Tunc. Upon consideration of the Petition,
the Order of the Superior Court, and Appellant’s
response to our PCRA Dismissal Order, this Court
entered an Order on October 7, 2016, granting
Appellant leave to appeal nunc pro tunc within
thirty days, and denying Appellant’s request to file
an amended PCRA petition. This appeal followed.
PCRA court opinion, 1/10/17 at 1-3.
Appellant has raised the following issues for this court’s review:
1. WHETHER THE PCRA COURT ERRED IN
ADOPTING PCRA COUNSEL’S “NO-MERIT”
FINLEY LETTER WHERE ISSUES OF MERIT
WERE CONTAINED IN IN [SIC] THE CERTIFIED
RECORD AVAILABLE TO THE PCRA COUNSEL
FOR EXAMINATION AND REVIEW[?]
2. WHETHER THE PCRA COURT ERRED IN
FAILING TO MAKE A DETERMINATION AND
ISSUE A FINAL ORDER TO THE APPELLANT’S
REQUEST FOR THE COURT’S PERMISSION TO
AMEND HIS RESPONSE TO COURT’S INTENT
TO DISMISS PURSUANT TO PA.R.CRIM.P.
907[?]
3. WHETER [SIC] THE ANNOUNCEMENT OF
MARTINEZ[] V. [] RYAN IS A SUBSTANTIVE
CAHNGE [SIC] IN LAW THAT ENTITLES THE
EFFECTIVE ASSISTANCE OF COUNSEL ON AN
INITIAL COLLATERAL REVIEW[?]
Appellant’s brief at 4 (emphasis added).
“When reviewing an order [granting or] denying PCRA relief, we must
determine whether the PCRA court’s determination is supported by the
record and is free from legal error.” Commonwealth v. Poplawski, 852
A.2d 323, 327 (Pa.Super. 2004) (citation omitted).
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[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.
Khalifah, 852 A.2d 1238, 1239-1240 (Pa.Super. 2004).
To prevail on a claim that counsel was
constitutionally ineffective, the appellant must
overcome the presumption of competence by
showing that: (1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued
by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged
proceeding would have been different. A failure to
satisfy any prong of the test for ineffectiveness will
require rejection of the claim.
Commonwealth v. Malloy, 856 A.2d 767, 781 (Pa. 2004) (citations
omitted). “We presume counsel is effective and place upon Appellant the
burden of proving otherwise. Counsel cannot be found ineffective for failing
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to pursue a baseless or meritless claim.” Poplawski, 852 A.2d at 327(citations omitted).
Appellant raised two distinct issues in his pro se PCRA petition:
1) that trial counsel, Douglas Waltman, Esq., failed to effectively
cross-examine prosecution witness Orlando Colon (“Colon”); and 2) that trial
counsel was ineffective for failing to object to the jury instructions.
Appointed PCRA counsel, Attorney Deming, thoroughly reviewed each of
these issues and determined they were without merit for the reasons set
forth in his Turner/Finley no-merit letter. (“No-Merit Letter,” 7/8/14 at
10-13; Docket #69.)
Appellant now argues that Attorney Deming was ineffective for not
uncovering additional issues of arguable merit. (Appellant’s brief at 8-9.)
Specifically, appellant contends that trial counsel was ineffective for failing to
pursue a defense of diminished capacity. (Id. at 10-15.) In fact,
Attorney Waltman did attempt to introduce evidence of diminished capacity
in the form of an expert report prepared by Larry A. Rotenberg, M.D., a
psychiatrist; however, in accordance with Pennsylvania law, the trial court
refused to allow it where appellant had not admitted any involvement in the
murder. Appellant argues that trial counsel failed to consult with him
regarding a diminished capacity defense. (Id. at 11-12.) Although this
issue is being raised for the first time on appeal, appellant argues that a
thorough and independent review of the whole record would have revealed it
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as an issue of arguable merit. Therefore, appellant contends that appointed
PCRA counsel should not have been permitted to withdraw.
In this case, as stated above, Attorney Deming filed a petition to
withdraw and a “no-merit” letter.
In Commonwealth v. Finley, supra, this
Court restated the procedures to be followed when
counsel seeks to withdraw in post-conviction
proceedings. See Commonwealth v. Turner, 518
Pa. 491, 544 A.2d 927 (1988). In Turner, our
supreme court endorsed an independent review by
the court of the record as a follow-up to counsel’s
“no-merit” letter. The independent review necessary
to secure a withdrawal request by counsel requires
proof that:
1. PCRA counsel, in a “no-merit” letter, has
detailed the nature and the extent of his
review;
2. PCRA counsel, in the “no-merit” letter,
lists each issue the petitioner wishes to
have reviewed;
3. PCRA counsel must explain, in the
“no-merit” letter, why petitioner’s issues
are meritless;
4. The PCRA court must conduct its own
independent review of the record; and
5. The PCRA court must agree with counsel
that the petition is meritless.
See, Finley, 379 Pa.Super. at 393, 550 A.2d at 215.
In addition, this assessment by the PCRA court
is, of course, subject to appellate scrutiny to assure
that these constraints are followed. See, Turner,
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Commonwealth v. Mosteller, 633 A.2d 615, 617 (Pa.Super. 1993).
Furthermore, pursuant to Commonwealth v. Friend, 896 A.2d 607(Pa.Super. 2006), counsel must forward to the petitioner a copy of the
“no-merit” letter and a statement advising the petitioner that, in the event
the PCRA court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se or with the assistance of privately retained
counsel.
Instantly, Attorney Deming complied with all of the above
requirements. He reviewed appellant’s two issues raised in his pro se PCRA
petition and concluded that neither had any merit. Attorney Deming further
concluded that, after a thorough review of the record, he could find no other
grounds for relief. The PCRA court, after conducting its own independent
review, agreed with Attorney Deming that there were no meritorious issues
entitling appellant to relief.
The issue concerning diminished capacity was raised for the first time
in appellant’s Rule 1925(b) statement and is deemed waived. See
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is
well-settled that issues not raised in a PCRA petition cannot be considered
on appeal.” (quotation marks and citations omitted)); 42 Pa.C.S.A.
§ 9544(b). Furthermore, to the extent appellant now claims that
Attorney Deming was ineffective for filing a petition to withdraw and
“no-merit” letter, the claim is both waived and meritless. It is well
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established that allegations of PCRA counsel’s ineffectiveness cannot be
brought for the first time on PCRA appeal. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa.Super. 2014) (en banc) (citations omitted);
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Therefore, appellant’s
allegation of PCRA counsel’s ineffectiveness is deemed waived. In his
pro se response to Rule 907 notice, appellant merely reiterated his claim
regarding the allegedly deficient cross-examination of Colon. (Docket #71.)
Appellant did not argue, as he does now, that Attorney Deming was
ineffective for failing to uncover additional issues of merit, including rejection
of Dr. Rotenberg’s report in support of a diminished capacity defense.
In addition, Attorney Deming cannot be held ineffective for merely
petitioning to withdraw as he is permitted to do under Turner/Finley. See
Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.Super. 2017)
(“When appointed, counsel’s duty is to either (1) amend the petitioner’s
pro se Petition and present the petitioner’s claims in acceptable legal terms,
or (2) certify that the claims lack merit by complying with the mandates of
Turner/Finley.” (footnote omitted)). Counsel complied with the
requirements for withdrawal as set forth in Turner/Finley, and the PCRA
court determined that there were no potentially meritorious issues which
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could be raised in a counseled amended PCRA petition. 2 (See PCRA court
opinion, 1/10/17 at 5 (“PCRA Counsel complied with these requirements and
fulfilled his obligations in a competent manner consistent with the directives
of this Court.”).)
Next, appellant argues that the PCRA court erred in denying his
request to file an amended petition. (Appellant’s brief at 16.) However,
appellant does not set forth what additional issues he wanted to raise in an
2
At any rate, appellant’s claim that trial counsel was ineffective in
connection with the diminished capacity defense is belied by the record.
Diminished capacity is a limited defense, which does
not exculpate the defendant from criminal liability
entirely, but instead negates the element of specific
intent. Commonwealth v. Gibson, 597 Pa. 402,
951 A.2d 1110, 1131-32 (2008) (citations omitted).
Thus, a defendant asserting a diminished capacity
defense admits responsibility for the underlying
action, but contests the degree of culpability based
upon his inability to formulate the requisite mental
state. Id. at 1132.
Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009). As the PCRA
court observes, diminished capacity would not apply where appellant’s
defense was that he had nothing to do with the shooting of Bitler. (PCRA
court opinion, 1/10/17 at 8-9.) Appellant did not admit responsibility for the
underlying crime. Therefore, the defense of diminished capacity, which may
only be used to reduce murder from a higher degree to a lower degree, was
unavailable. In addition, there was extensive discussion regarding the
admission of Dr. Rotenberg’s report and whether or not appellant could
assert a defense of diminished capacity while simultaneously arguing his
absolute innocence. (Notes of testimony, 1/10-14/11 at 465-475.) Trial
counsel made it very clear that appellant was not prepared to concede that
he was guilty of any of the charged offenses. (Id. at 471-472.) Appellant’s
claim that he was deprived of an opportunity to present a diminished
capacity defense at trial is demonstrably frivolous.
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amended petition, except a generalized allegation that PCRA counsel was
ineffective. (Id.) As discussed above, Attorney Deming conscientiously
reviewed both claims advanced in appellant’s pro se PCRA petition and
determined, after thoroughly reviewing the entire official record, that each
claim was meritless. The PCRA court determined, after considering
appellant’s October 1, 2015 pro se response to Rule 907 notice, that he
failed to establish any grounds upon which relief could be granted under the
PCRA. (PCRA court opinion, 1/10/17 at 7.) The PCRA court did not err in
denying appellant’s request to file an amended petition.
Finally, appellant claims that the United States Supreme Court case of
Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012), somehow applies to
his case. (Appellant’s brief at 17-19.) Appellant is mistaken. The High
Court in Martinez held that,
[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding
was ineffective.
Id. at 17, 132 S.Ct. at 1320. The Martinez Court recognized a narrow
exception to the rule enunciated in Coleman v. Thompson, 501 U.S. 722(1991), that an attorney’s errors in a post-conviction proceeding do not
qualify as cause for a default.
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Obviously, this is a state case and does not involve federal habeas
proceedings, let alone the procedural default rule. Martinez is wholly
inapposite.
For these reasons, we conclude that the PCRA court did not err in
permitting Attorney Deming to withdraw and dismissing appellant’s petition
without an evidentiary hearing. As such, we will affirm the order dismissing
appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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